Himachal Pradesh High Court
Beverley Singh vs Tejinder Singh And Another on 21 July, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Suit No. 29 of 2023
Order Reserved on: July 4, 2023
.
Date of Decision: July 21, 2023
Beverley Singh .........Plaintiff
Versus
Tejinder Singh and another .......Defendants
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
For the plaintiff: Mr. Neeraj Gupta, Senior Advocate with Ms. Rinki
Kashmiri, Advocate.
For the defendants: Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lal,
Advocate.
Sandeep Sharma, J. (Oral)
ORDER This order shall dispose of the following issue raised by the defendants:
"Whether this Court has jurisdiction to try and entertain the suit at hand, in view of Ss. 7 and 8 of the Family Courts Act?"
2. Having heard learned counsel for the parties and perused the material available on record, certain facts, relevant for the adjudication of the question of maintainability of the suit are that the plaintiff, though of Indian original, but a citizen of United Kingdom, was unfortunately widowed in 1993, and thereafter, in the year 2009, solemnized marriage with defendant No.1, who is also a citizen of the United 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 21/07/2023 20:41:52 :::CIS 2Kingdom. Prior to his marriage with the plaintiff, defendant No.1 had solemnized three marriages, but all of them failed. Defendant No.2 is the daughter of defendant .
No.1 from his first wife. Plaintiff is the fourth wife of defendant No.1 and she has two children from her earlier marriage. Defendant No.1 has no child from the plaintiff.
After marriage, plaintiff started living with defendant No.1 in property known as "knollswood Estate" Shimla.
3. As per the averments contained in the plaint, defendant No.1 is extremely wealthy man, having monthly income of about Rs.50.00 Lakh from various sources and is owner of properties, which are worth more than Rs.500 Crore, including residential house at Knollswood Estate, Chhota Shimla as well as residential house at Sardar Patel Marg, Chanakyapuri, New Delhi. Besides this, defendant No.1 is stated to have huge landed property in Dharamshala, District Kangra, Himachal Pradesh. Plaintiff avers that she herself belongs to an affluent family, having social standing, but after being assured by defendant No.1 that she would be given a life of dignity , honour and social status, she solemnized marriage with defendant No.1 in the year 2009.
4. Careful perusal of the contents of plaint suggests that the relationship inter se plaintiff and defendant No.1 never remained cordial after marriage as such, plaintiff besides filing police complaints against defendant No.1 also filed a petition under S.12 of the Protection of Women from Domestic Violence Act in the competent court of law at Shimla.
::: Downloaded on - 21/07/2023 20:41:52 :::CIS 35. Dispute raised in the case at hand is with respect to properties of defendant No.1 situate at Mauja Shilla, Tehsil Dharamshala, District Kangra. As per plaintiff, .
on 31.8.2021, defendant No.1 executed two settlement deeds in her favour with respect to huge chunks of land, as detailed in the plaint, situate at Dharamshala, District Kangra,. Under the terms and conditions of both the settlement deeds, though the plaintiff was given absolute right qua property in question but she did not have any right to alienate, sell, mortgage, exchange, gift or lease the same without the consent of defendant No.1. Plaintiff alleged that on the same date i.e. 31.8.2021, defendant No.1 obtained General Power of Attorney from the plaintiff in respect of land in settlement deed, taking authority not only to sell, gift, mortgage, lease, exchange, alienate the entire property within the State of Himachal Pradesh or anywhere in India but also to control, supervise, manage and administer the aforesaid property. It is further averred by the plaintiff that in addition to General Power of Attorney dated 31.8.2021, defendant No.1 also obtained an irrevocable Will from the plaintiff in respect of entire property owned by plaintiff in District Kangra and entire State of Himachal Pradesh.
6. Precisely, the grouse of the plaintiff is that defendant No.1 had purportedly settled/gifted land as detailed in the plaint, in her favour but he continued to be in complete control/management of the same and restrained her right to dispose of the same in any manner. Though, plaintiff and defendant No.1 lived together for fourteen years in the houses at New Delhi and Shimla, but in December, 2022, ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 4 dispute arose inter se them on account of renting out premises in Delhi by defendant No.1 to some other person. Subsequent to dispute, many more disputes .
with regard to properties inter se plaintiff and defendant No.1 arose and, allegedly after being threatened, plaintiff instituted proceedings under the Protection of Women from Domestic Violence Act against defendant No.1.
7. Suit at hand has been filed on the premise that after perusing revenue record of land detailed in settlement/gift made in favour of the plaintiff, she came to know that some of the property situate at Mohal Shilla, District Kangra, Himachal Pradesh denoted by Khasra Nos. 470, 498 and 499 (Kita 3) is though standing in the name of defendant No.2 in the revenue record, but one more settlement deed has been executed by defendant No.1 in favour of defendant No.2 on 29.7.2015, whereby aforesaid land has been settled/ gifted in favour of defendant No.2. Plaintiff alleged that defendant No.1 has been adopting similar modus operandi with defendant No.2, who though has been given absolute right qua the property in question, but has no right to sell, transfer, encumber or alienate the property without consent of defendant No.1. In the aforesaid backdrop, plaintiff, by way of suit at hand, has prayed for injunction restraining defendant No.1 and defendant No.2 from transferring, selling, encumbering or creating third party rights in any manner, whatsoever qua the land situate at Mohal Shilla, Tehsil Dharamshala, District Kangra, Himachal Pradesh. Specific prayer has been made to restrain defendant No.2 from transferring, alienating or encumbering the land in Mauja Shilla, Tehsil ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 5 Dharamshala, District Kangra, Himachal Pradesh, which already stands settled/gifted by defendant No.1 to plaintiff.
.
8. On 18.5.2023, this Court, leaving question of maintainability and jurisdiction open, issued notice to the defendants. Mr. Arjun Lal, Advocate put in appearance on behalf of the defendants and was granted time to file reply to stay application.
Since on the aforesaid day, a specific objection qua maintainability of suit and jurisdiction of this Court, came to be raised, this court, after hearing parties, reserved the order on 23.6.2023
9. Mr. R.L. Sood, learned senior counsel duly assisted by Mr. Arjun Lal, Advocate, while making this court peruse the averments contained in the plaint vis-
à-vis provisions of S.7 of the Family Courts Act (hereinafter, 'Act') vehemently argued that having regard to the nature of dispute and reliefs sought for, suit having been filed by the plaintiff is not maintainable on this score and needs to be transferred to Family Court. He submitted that the suit filed by the plaintiff is of the nature, as has been provided in explanation to sub-section (1) of S.7 of the Act. He submitted that in the case at hand, dispute with regard to property is inter se husband and wife and injunction has been sought in the circumstances arising out of marital relations. While referring to sub-section (1) of S.7 of the Act, explanation
(c) and (d), Mr. Sood contended that present suit is not maintainable before this Court and as such, the same be transferred to a family court in Shimla, where the ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 6 plaintiff has already instituted proceedings under S.12 of the Protection of Women from Domestic Violence Act against defendant No.1.
.
10. Mr. Neeraj Gupta, learned senior counsel duly assisted by Ms. Rinki Kashmiri, Advocate, while opposing the afore prayer made by Mr. R.L. Sood, learned senior counsel, strenuously argued that though relationship inter se plaintiff and defendant No.1 is of husband-wife and dispute is also with regard to property of husband (defendant No.1), but since defendant No.1 has already transferred part of property in dispute in favour of defendant No.2, prayer made on behalf of the plaintiff to injunct the defendants from alienating, transferring, creating third party rights etc. can only be considered by this Court in the instant suit. He further submitted that some part of land in settlement deed already stands mutated in favour of defendant No.2, as such, same cannot be said to be property of defendant No.1. He submitted that in the peculiar facts of the case, provisions contained under S.7 of the Act are not attracted in the present case, as such, present suit having been filed by the plaintiff is triable by this Court.
11. Before ascertaining the correctness and genuineness of the rival submissions made by learned counsel for the parties, it would be apt to take note of Ss. 7 and 8 of the Act, which are reproduced as under:
7. Jurisdiction.--(1) Subject to the other provisions of this Act, a Family Court shall--
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 7 respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such .
law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation.--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise--
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
8. Exclusion of jurisdiction and pending proceedings.--Where a Family Court has been established for any area,--
::: Downloaded on - 21/07/2023 20:41:52 :::CIS 8(a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation .
to that sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),--
(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.
shall stand transferred to such Family Court on the date on which it is established"
12. Family Courts Act is a special Act, wherein under S.7, it has been provided that the 'family court' shall have all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. A suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 9 marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage, can only be filed in a Family court. Similarly, suit or proceeding for a .
declaration as to the validity of a marriage or as to the matrimonial status of any person, can be filed in family court. Besides this, a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them and/or a suit or proceeding for an order or injunction in 'circumstance arising out of a marital relationship', can also be filed before a Family court.
13. S.8 of the Act ibid clearly provides that no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section.
14. Though the parties are not in dispute that the expression, 'district court' as used in S.8 of the Act also includes High Court exercising original jurisdiction under S.12 of the Letters Patent Act, but yet, otherwise, aforesaid issue already stands settled in a judgment rendered by a Full Bench of High Court of Bombay in Romila Jaidev Shroff v. Jaidev Rajnikant Shroff reported in 2000 (3) Mh. L.J. 468.
15. Apart from aforesaid judgment, High Court of Delhi vide judgment rendered in Amina Bharatram v. Sumant Bharatram and Ors., AIR 2016 Del 171 also held that Delhi High Court is a 'District Court' under S.8 in respect of matters falling under explanation to sub-section (1) of S.7 of the Act. Needless to say, High Court of Himachal Pradesh is also exercising civil jurisdiction in relation to 'family court', ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 10 as such, it would be 'district court' in terms of provisions contained under Ss. 7 and 8 of the Act. This Court does not have jurisdiction to decide the cases referred .
under Ss. 7 and 8 of the Act.
16. Mr. R.L. Sood, learned senior counsel representing defendant No.1, while making this court peruse explanation (b) and (c) to S.7(1), argued that the suit filed by the plaintiff is qua the property between the parties to the marriage and injunction has been sought in the circumstances arising out of marital relations, as such, jurisdiction of this court is excluded in terms of S.8 of the Act and the suit needs to be decided by a 'family court'.
17. Mr. Neeraj Gupta, learned Senior Advocate duly assisted by Ms. Rinki Kashmiri, Advocate, while refuting the aforesaid submission made on behalf of Mr. Sood, learned senior counsel appearing for defendant No.1, argued that though dispute between the plaintiff and defendant No. 1, who are wife and husband, is qua property of one of the spouses, but since a part of suit property, qua which injunction has been sought, already stands transferred in the name of defendant No.2, daughter of defendant No.1 from his first wife and property stands mutated in her name, suit/proceedings as initiated in the instant case, cannot be said to be between parties to a marriage. He further submitted that suit or proceedings for order of injunction filed in this court, cannot be said to be in 'circumstances arising out of marital relationship', especially when there is nothing to suggest that property, which is subject matter of the suit was given to the plaintiff under some marital ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 11 obligation of defendant No.1, rather, the same came to be given to the plaintiff by defendant No.1, out of love and affection, as has been sttated in the settlement/gift .
deed.
18. Though, having perused the pleadings as well as documents adduced on record by respective parties, this Court finds that the dispute inter se parties, who are husband-wife, is qua property of defendant No.1, who allegedly settled/gifted land in favour of the plaintiff by way of settlement deed, but suit for injunction has been filed by the plaintiff seeking therein restraint order against defendants Nos. 1 and 2, restraining them from selling, encumbering, transferring and alienating whole or part of suit land situate in Tehsil Dharamshala, which the defendant No.1, prior to making settlement deed dated 31.8.2021 had settled/ gifted in favour of his daughter, defendant No.2, by way of settlement deed dated 29.7.2015.
19. Though, as per plaintiff, suit land as detailed in the plaint situate at Shilla, Tehsil Dharamshala, District Kangra, Himachal Pradesh, which was settled /gifted in her favour by defendant No.1, was also settled in favour of defendant No.2 on 29.7.2015 but, once their relations got estranged, she after having perused revenue record, found that some part of suit land gifted in her favour, also stood settled/gifted in favour of defendant No.2 by defendant No.1, by way of settlement deed dated 29.7.2015. Though, perusal of settlement deed dated 31.8.2021, clearly suggests that the land as detailed in suit was settled/gifted by defendant No.1 in favour of plaintiff but yet he continues to be reflected as owner of the same in the ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 12 revenue record and till date, his name is reflected as owner in the revenue record, as has been placed on record by the plaintiff. However, part of suit land settled .
/gifted by defendant No.1 in favour of defendant No.2 has been entered in the name of defendant No.2 and in that regard, correction of revenue record and mutation attested by competent authority was made available to this Court during proceedings of the case, which is already taken on record.
20. Careful perusal of Rapat No. 605, dated 24.6.2020 suggests that defendant No.1 had gifted some part of suit land in favour of his daughter i.e. defendant No.2 and vide Rapat Rojnamcha dated 31.5.2023, entry with regard to settlement/gift deed made by defendant No.1 in favour of defendant No.2 stands recorded in the revenue record.
21. Mr. R.L. Sood, learned senior counsel representing defendant No.1 vehemently argued that mere entry, if any, and Rapat Rojnamcha of mutation, if any, entered in favour of defendant No.2 would not make her absolute owner rather absolute right of ownership qua the land settled/gifted in her favour would be conferred after registration of sale deed.
22. Though, there cannot be any quarrel with the aforesaid submission made by Mr. Sood, learned senior counsel but, admittedly, revenue record placed on record by defendant No.1 himself during the arguments, itself suggests that factum with regard to settlement deed dated 29.7.2015, made by defendant No.1 in favour of ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 13 defendant No.2 already stands recorded in revenue record and on the basis of same, Rapat Rojnamcha dated 31.5.2023 has been already recorded.
.
23. Today, parties to the lis made claim that defendant No.2 has not become absolute owner but definitely, on account of Rapat entered in the Rapat Rojnamcha and attestation of mutation, she can claim to have right in the property as detailed in the plaint. If it is so, suit property cannot be said to be owned by defendant No.1 solely, rather, on account of execution of settlement deed dated 29.7.2015, factum of which stands already recorded in the revenue record, defendant No.2 is also owner in the suit land. Leaving everything aside, this court finds that as per averments contained in the plaint (paragraph-20), defendant No.1 vide settlement/gift deed, settled part of land at Mohal Shilla in Khasra Nos. 474, 498 and 499 (kita-3) in favour of his daughter, meaning thereby interest of defendant No.2 has been created much prior to settlement deed dated 31.8.2021.
24. In view of aforesaid facts, case of the plaintiff would not fall under the explanation (c) of sub-section (1) of S.7 because, in the case at hand, though suit/property belongs to one of the parties to marriage but since third party rights stand created on account of execution of settlement deed dated 29.7.2015 by defendant No.1 in favour of defendant No.2 and injunction has been sought by plaintiff against defendant No.2, who is a party to the suit and already got right in some part of property prior to settlement deed dated 31.8.2021, suit filed by the ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 14 plaintiff cannot be barred on account of explanation (c) or (d) to sub-section(1) of S.7 of the Act.
.
25. The, next question which arises for consideration is, 'whether injunction sought for by the plaintiff is in circumstances arising out of marital relationship or not?"
26. Though, it has been argued by Mr. R.L. Sood, learned senior counsel appearing for defendant No.1 that injunction has been sought by the plaintiff against the defendants restraining them from alienating, selling, encumbering the suit property, which is owned and possessed by one of the parties to marriage i.e. defendant No.1, suit for injunction, can be said to have been filed in 'circumstances arising out of marital relationship' but this court finds no merit in the aforesaid submission of Mr. Sood, for the reason that though suit property belongs to one of the parties to marriage, but there is nothing on record to suggest that the same came to be settled/gifted by defendant No.1 in favour of plaintiff, on account of circumstances arising out of marital relationship. There is nothing on record to infer, as argued by Mr. Sood that the settlement deed/gift deed executed by defendant No.1 on 31.8.2021 was on account of any marital obligation rather, careful perusal of settlement deed, as detailed herein above, clearly suggests that defendant No.1 being Karta of Hindu family, out of love and affection, with a view to settle his wife, settled/gifted land in favour of plaintiff, as detailed in the settlement deed. It was none of obligation of defendant No.1 being husband of plaintiff to give his property ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 15 to his wife, but yet he, with a view to secure her future, agreed to give certain properties situate in Shilla Tehsil Dharamshala, District Kangra to plaintiff.
.
27. As per settlement deed dated 31.8.2021, plaintiff has no right to sell, alienate, encumber or create third party interest in the suit property without the consent of plaintiff. Leaving everything aside, this court finds that as per own case of the plaintiff, suit property continues to be reflected in the name of defendant No.1 in the revenue record, meaning thereby property, if any, given by defendant No.1 to the plaintiff by way of settlement deed, cannot be said to be on account of some marital obligation. r
28. Leaving everything aside, question with regard to entitlement of defendant No.2 qua some part of suit property as discussed in the plaint in terms of settlement deed dated 29.7.2015 execcuted in her favour by defendant No.1 on 29.7.2015, cannot be decided by a family court. No doubt, suit property belongs to one of the parties to marriage, but, as has been mentioned herein above, some part of suit land stands mutated in favour of defendant No. 2 on account of execution of settlement deed dated 29.7.2015 in her favour by defendant No.1, coupled with the fact that injunction is being sought qua that portion of property, which has already been settled /gifted by defendant No.1 to defendant No.2, as such, prayer made on behalf of learned counsel for the defendants for transfer of suit to a family court, cannot be accepted. Moreover, at the cost of repetition, it may be observed that injunction as sought for in the suit, for the reasons stated herein above, cannot be ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 16 said to be in 'circumstances arising out of marital relationship'. In the suit, plaintiff besides asking for injunction against defendant No.1 has also prayed for injunction .
against defendant No.2, who is daughter of defendant No.1, out of his first marriage.
29. In Dhulabhai v. State of Madhya Pradesh, [1968] 3 SCR 662, Hon'ble Apex Court had an occasion to consider the question, 'whether the jurisdiction of civil court was barred either expressly or by necessary implication?' After referring to a number of judgments, Hon'ble Apex Court laid down that, where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not?
Relevant para of Dhulabhai supra, is reproduced herein below:
"Neither of the two cases of Firm of Illuri Subayya(1) or Kamla Mills(2) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows :-
(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 17 complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of .
the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all ques- tions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for. the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
::: Downloaded on - 21/07/2023 20:41:52 :::CIS 1830. It is quite apparent from the aforesaid law laid down by Hon'ble Apex Court .
that exclusion of jurisdiction of civil court is not readily to be inferred unless condition aforesaid applies. Though, family court creates special rights or liabilities and provides for determination of rights relating to marriage, but certainly, it does not lay down that all questions of rights and liabilities shall be decided by the family court.
31. Section 8(a) of the Family Courts Act excludes the Civil Court's jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial separation, but certainly, it does not purport to bar the jurisdiction of the Civil Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage.
32. At this stage, it would be apt to take note of following para of judgment rendered by Hon'ble Apex Court in Samar Kumar Roy v. Jharna Bera, (2017) 9 SCC 591. Relevant paragraph of judgment supra read as under:
"16. On a reading of the aforesaid propositions, it is clear that the examination of the remedies provided and the scheme of the Hindu Marriage Act and of the Special Marriage Act show that the statute creates special rights or liabilities and provides for determination of rights relating to marriage. The Acts do not lay down that all questions relating to the said rights and ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 19 liabilities shall be determined only by the Tribunals which are constituted under the said Act. Section 8(a) of the Family Courts Act excludes the Civil Court's jurisdiction in respect of a suit or proceeding which is between the .
parties and filed under the Hindu Marriage Act or Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial separation. It does not purport to bar the jurisdiction of the Civil Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage. Also as was pointed out, an exclusion of the jurisdiction of the civil courts is not readily inferred. Given the line of judgments referred to by the High Courts, and given the fact that a suit for declaration as to legal character which includes the matrimonial status of parties to a marriage when it comes to a marriage which allegedly has never taken place either de jure or de facto, it is clear that the civil court's jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law."
33. During proceedings of the case, Mr. R.L. Sood, learned senior counsel appearing for defendant No.1 placed heavy reliance upon a judgment passed by Hon'ble Apex Court in Dahiben v. Arvindbhai Kalyani Bhanusali, (2020) 7 SCC 366 to state that court, while considering prayer for rejection of plaint needs to determine whether plaint, prima facie, discloses cause of action or not? He submitted that in exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. He submitted that since careful perusal of assertions made in the plaint suggests that same needs to be decided by special court created under Family Courts Act, prayer ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 20 made on behalf of defendant No.1 that the instant suit is barred by S.7 of the Act, needs to be accepted. However, having carefully perused the aforesaid judgment .
pressed into service, this court finds that same is not applicable in the facts of the present case.
34. Though, Mr. Sood, while making this court peruse the aforesaid judgment, vehemently argued that the only object of Order VII, rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. He submitted that since suit is exclusively triable by family court in terms of provisions contained under S.8 of the Act, this Court would not entertain suit, which is otherwise likely to fail on account of jurisdiction. In the aforesaid judgment, Hon'ble Apex Court has culled out certain principles to be taken into consideration by the courts, while considering prayer, if any, made in an application under Order VII, rule 11 CPC, but since in the case at hand, no such application has been filed, parameters as laid down are not to be followed, while considering prayer made on behalf of defendant No.1, for transferring the suit to a family court. Otherwise also, it has been specifically provided under the Act that what kind of suit or proceedings would be triable by the family court.
::: Downloaded on - 21/07/2023 20:41:52 :::CIS 2135. Mr. Sood also placed reliance upon a judgment passed by High Court of .
Delhi in Avneet Kaur v. Sadhu Singh & Anr, CM(M) 69/2020 & CM APPL.2707/2020, decided on 1.6.2022 to state that explanation (d) under sub-
section (1) of S.7 of the Act does not require the parties to lis to be husband and wife. He submitted that mere making of settlement deed in favour of defendant No.2 thereby settling/gifting certain part of suit property in favour of defendant No.2 by defendant No.1 would not exclude jurisdiction of family court because, to apply aforesaid Clause (d) of the explanation to Section 7 (1) of the Family Courts Act, does not envisage a causal relationship, i.e. a relationship of cause and effect, between the marital relationship and the circumstances in which injunction was sought. All that is required is that the circumstances in which injunction was sought arose out of the marital relationship.
36. There cannot be any quarrel with the aforesaid principle of law, but in the case at hand, there is no dispute that there is marital relationship inter se plaintiff and defendant No.1, but certainly, facts as contained in plaint nowhere suggest that marital relationship has resulted in certain circumstances which entitled plaintiff for order of injunction, as has been sought. If it is so, prayer for injunction in the instant suit cannot be granted by family court.
37. Apart from this, as has been discussed herein above, on account of execution of sale deed dated 29.7.2015, executed by defendant No.1 in favour of ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 22 defendant No.2, defendant No.2 has become owner qua some part of property, which is otherwise subject matter of suit. On account of execution of aforesaid .
deed, defendant No.2 has become of owner of some part of suit property in independent capacity. If it is so, property in dispute, cannot be said to be exclusively owned by one of the parties to marriage.
38. Leaving everything aside, this court finds that the aforesaid judgment pressed into service has not attained finality because, High Court of Delhi in Geeta Anand v. Tanya Arjun and another, CS(OS) 601/2022 & IAs 15957/2022, 20302/2022, reported in 2023 SCC OnLine Del 3535, having taken note of conflicting judgments rendered on the point by coordinate benches has already referred the matter to a larger bench. Relevant paragraphs of Geeta Anand, read as under:
"26. I must, at the outset, note that in Avneet Kaur (supra) the attention of the learned Single Judge was not drawn to the earlier judgments of this Court in Manita Khurana (supra) and Meena Kapoor (supra). The learned Single Judge, therefore, observed that the petition raised an issue which is to a large extent res integra.
27. A reading of the above judgments would show that there is an apparent conflict of opinion between Manita Khurana (supra) and Meena Kapoor (supra) on one hand and Avneet Kaur (supra) on the other, on the interpretation, ambit and the scope of Explanation (d) of Section 7(1) of the Family Courts Act. While in Manita Khurana (supra) and Meena Kapoor (supra), the learned Single Judge(s) of this Court have held that the claim of ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 23 a third party to a marriage, even if she be the mother of one of the spouses, cannot be adjudicated before the Family Court, and that the Suit seeking eviction based on title to the Suit property would be maintainable, in Avneet .
Kaur (supra), the learned Single Judge has held that such a Suit would not be maintainable as the foundation of the dispute is the marriage.
28. In Sabina Sahdev & Ors. v. Vidur Sahdev, (order dated 07.03.2018 passed in CRL M.C. No. 878/2018), a learned Single Judge of this Court, faced with a similar situation of conflicting opinions of two Benches of Co-equal strength on the issue of interim Signature Not Verified Digitally Signed By:SUNIL Signing Date:03.06.2023 maintenance to a wife under Section 125 of the Code of Criminal Procedure, 1973, relying on Central Board of Dawoodi Bohra Community (supra), placed the issue before Hon'ble the Acting Chief Justice to, in turn, place the same before a Larger Bench for settling the issue. The same course had been adopted by the Supreme Court in O.M. Bhargava (Dead) by LRs v. Satyavati Bhargava and Others, (1994) 4 SCC 662, when confronted with contradictory views taken by two Benches of co- equal strength.
29. In view of the above, I deem it appropriate to adopt the same course in the present application. I am further persuaded to adopt this course by the fact and the submission of the learned counsels for the parties that there are many suits pending before this Court and before the learned District Courts which would involve similar question of jurisdiction and, therefore, it would be in the interest of justice that this issue is authoritatively decided by a Larger Bench.
30. The following issues are framed for consideration of Hon'ble the Chief Justice if these are to be referred for determination by a larger Bench:-
ISSUES ::: Downloaded on - 21/07/2023 20:41:52 :::CIS 24
(a) Whether a suit for possession/injunction filed by the in- laws of the defendant or either of them, claiming themselves or either of them to be the exclusive owner of the property of which the possession is sought or with respect to which injunction is prayed for from or against the .
defendant/daughter- in-law, is to be tried exclusively by the Family Court Signature Not Verified Digitally Signed By:SUNIL Signing Date:03.06.2023 established under the Family Courts Act, and the jurisdiction of the Civil Court is barred?
(b) Whether the impleadment or non-impleadment of the husband of the defendant/son of the plaintiff has any effect on the maintainability of such a suit before a Civil Court?
31. The Registry is directed to place the matter before Hon'ble the Chief Justice for appropriate directions, at the earliest."
39. Consequently, in view of detailed discussion made herein above and law taken into consideration, the issue is answered in the affirmative. This court has the jurisdiction to entertain the present suit and suit is maintainable in this Court.
40. Now the main suit alongwith application(s), be listed on August 10, 2023.
( Sandeep Sharma ), Judge July 21, 2023 (Vikrant) ::: Downloaded on - 21/07/2023 20:41:52 :::CIS